In sum, the court ruled that a triable issue existed as to whether the ten employee-
uploaded videos were “stored at the direction of a user” and as to whether Vimeo had knowledge
or awareness of infringing content in the 55 of the 199 videos in suit with which Vimeo
employees interacted. Accordingly, Vimeo’s motion for summary judgment seeking safe harbor
protection was granted as to the remaining 144 videos in suit, save for those videos in suit
containing infringed upon material recorded before February 15, 1972.^2838 The plaintiffs’ cross
motion for partial summary judgment was granted solely as to videos in suit containing
infringing musical recordings which were recorded prior to February 15, 1972.^2839
The defendants filed a motion for reconsideration, asking the court to reconsider its
decision with respect to 35 of the 55 videos with which Vimeo employees interacted. The court,
in a subsequent opinion, granted summary judgment to Vimeo with respect to 15 of the 35
videos because, upon further review of the record, the court agreed with Vimeo that no evidence
showed that Vimeo employees actually viewed the content of those videos.^2840 With respect to
the remaining 20 of the videos, the defendants argued that the infringing nature of the videos was
not obvious because each contained some original elements and their creators thus had at least a
colorable defense that they made fair use of the copyrighted material, and the videos could
therefore not provide red flag knowledge to Vimeo. The court reviewed the remaining 20 videos
and determined that, with respect to 18 of them, a reasonable juror could (but need not) find that
the infringing activity in each video was objectively obvious to a reasonable person because the
videos played virtually all of the copyrighted song, most of them displayed both the artist and
song title, and the songs were an integral part of the videos, with the length of the video
corresponding to the length of the song. But the court determined that the defendants were
entitled to summary judgment on the other two videos because evidence of infringement was not
objectively obvious in them. In each of them, the copyrighted songs played for only a short time
in the background (less than a minute) in the middle of the video, and neither the name of the
song nor the artist was displayed anywhere in the video or on the web page through which users
could view the video.^2841
In addition, the court granted Vimeo’s request to certify for interlocutory appeal to the
Second Circuit the following two questions:
(1) Whether the DMCA’s safe-harbor provisions are applicable to sound
recordings fixed prior to February 15, 1972; and(2) Whether, under Viacom Int’l. Inc. v. YouTube, Inc., a service provider’s
viewing of a user-generated video containing all or virtually all of a recognizable,(^2838) The plaintiffs argued that the DMCA safe harbors do not extend to recordings first fixed before February 15,
1972 and the court agreed for the reasons discussed in Section III.C.6(b)(8) below. See id. at 536-37.
(^2839) Id. at 537.
(^2840) Capitol Records, LLC v. Vimeo, 972 F. Supp. 2d 537, 543-45 (S.D.N.Y. 2013).
(^2841) Id. at 546-47. The court also granted the plaintiffs leave to file an amended complaint to add 1476 new
instances of infringement. Id. at 549-50.